Democracy: Turkey v Australia

On the 15 July 2016 there was an attempted coup in Turkey and a few hours after the situation was resolved 2,745 judges were sacked. There does not seem to have been any investigation into the judges before they were removed and it has been reported that these judges were on an already compiled list of enemies of the governing AK Party.

A failed coup and then the firing of so many within the judiciary seems bizarre to Australians. But have you ever wondered what it is about Australian democracy that allows us to resolve problems through our democratic institutions, including the Parliament, the Courts and by the Executive Government?

This week we compare Australia to Turkey and take a look at the separation of powers inherent to democracy.

Separation of powers

Both Australia and Turkey are constitutional democracies. This means that both our countries have an underlying written framework for how government operates. Separation of powers is the principle that a strong constitutional democracy has three separate levels of governance. These are an executive government, a parliament and an independent judiciary. These three powers hold each other to account. And so while they may not always agree, each of these powers understands their role in democracy and no one institution or person holds all the power.

The 2016 International Commission of Jurists report Turkey: the Judicial System in Peril defines the international standards of the separation of powers principle:

The separation of powers, particularly between the political branches of government and the judiciary, is a core precept of the rule of law. Central to this principle is that the judiciary must be, structurally and in practice, independent. Thus, the universally accepted principle is that: “the independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.”

In Turkey Articles 7, 8 and 9 of the Constitution outline the separation of powers. The Legislative power is vested in the Grand National Assembly which is made up of 550 elected members. The Executive Power is exercised by the President and the Council of Ministers and the Judicial Power is exercised by the Courts.  

The separation of power here in Australia is outlined in Chapters I, II and III of the Constitution. These are the Legislative powers (the Queen and the two Houses of Parliament), the Executive power (effectively the Government) and the Judiciary. We’ve written a detailed article about this before, click here to read.

An independent judiciary is vital to a functioning democracy, with Judges being able to perform their roles without fear or favour and that begins with protected tenure. If judges can be sacked or demoted for making certain judgements this may affect their decisions.

Tenure of Judges

The Constitutions of Turkey and Australia protect the tenure of judges. Turkish judges are able to remain in the role until they are 65, while Australian judges must retired at 70.

 Here is the relevant Turkish Constitution Article:

Security of tenure of judges and public prosecutors

Judges and public prosecutors shall not be dismissed, or unless they request, shall not be retired before the age prescribed by the Constitution; nor shall they be deprived of their salaries, allowances or other rights relating to their status, even as a result of the abolition of a court or a post.

Exceptions indicated in law relating to those convicted for an offence requiring dismissal from the profession, those who are definitely established as unable to perform their duties because of ill- health, or those determined as unsuitable to remain in the profession, are reserved.

 Compare the Australian section:

Section 72 Judges’ appointment, tenure, and remuneration
The Justices of the High Court and of the other courts created by the Parliament:
….(ii) shall not be removed except by the Governor‑General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity….

No federal judge has ever been removed in Australia. Although there were several allegations that High Court Justice Murphy had attempted to pervert the course of justice in 1984. A Senate committee was established to investigate the allegations and they cleared him of any wrongdoing. Further allegations were then made, and the committee was reconvened but they could not agree on a decision. As such a new Senate committee was established, assisted by two retired judges. This committee decided that Justice Murphy could not be found guilty of any criminal offence, but concluded that it was open to the parliament to decide if he was guilty of “misbehaviour”.

The Judge was subsequently prosecuted and then convicted of one charge in the Supreme Court of NSW in 1985. However the judgement was set aside and a new trial ordered, which took place in 1986 where Justice Murphy was acquitted.  Later in 1986 a Parliamentary Commission of Enquiry was established to investigate even more allegations. It was then announced that Justice Murphy was dying of incurable cancer. The Commission stopped its work and the documents were sealed for 30 years. Justice Murphy performed duties in the High Court for one more week before he passed away in October 1986.

So, the removal of a judge is extremely hard in Australia and subject to a rigorous Constitutional processes. But what is the process in Turkey, so that their judges were removed so quickly?

The Turkish Supreme Council of Judges and Prosecutors (HSYK) 

Stipulated in Article 159 of the Turkish Constitution, this Council is responsible for the organisation of the Judiciary in Turkey. They have the power to decide on admission, appointment, transfer, promotion, disciplinary measures, dismissal, and supervision of judges and public prosecutors. The HSYK is made up of 22 regular members and 12 substitute members. Some of these members are appointed (The Minister for Justice is the President of the HSYK), some are selected by the President of Turkey, the Parliament and the Justice Academy while others are elected by senior Judges and Prosecutors.

Article 159 of the Turkish Constitution was altered by a constitutional amendment in 2010. Before these changes the council was made up of seven regular and five substitute members and all except two were appointed by the President. So the alterations were seen as an improvement to the independence of the judiciary.

However, since this period there have been some changes to the structure of the HSYK that have decreased the independence of the council. In 2014 new legislation gave the Minister of Justice stronger powers over the Council. The Minister of Justice as the President of the Council then sacked a number of members of the Council and made new appointments. Thereby changing the makeup Council. While the Constitutional Court later found the legislation contrary to Article 159 of the Constitution, they had no power to reverse the appointments.

Later in 2014 the elections for the members of the Council by senior Judges and Prosecutors took place. It has been reported that the government contributed resources to their preferred candidates, which resulted in the election of judges and prosecutors that were closely aligned with the Ministry of Justice.

So what happened to the 2,745 judges?

The Supreme Council of Judges and Prosecutors used its power to sack the judges on Saturday morning the 16 July 2016. On top of that it has been reported that the Council fired ten of their own members. It has also been reported that some of the judges have been arrested and charged with offenses against the Constitutional Order and Operation of Constitution Rules. The International Bar Association’s Human Rights Institute (IBAHRI) has issued a statement:

The speed with which the Supreme Council of Judges and Prosecutors was able to identify such a large number of judges supposedly linked to the coup attempt is extremely concerning to the IBAHRI. The HYSK should refrain from suspending and arresting judges until an independent and transparent investigation has taken place to establish whether there is a concrete link between individual judges and those responsible for the failed putsch. This sort of blanket dismissal is in direct conflict with Turkey's Constitutional protection for judges' security of tenure and against unfair dismissal. It also disregards international legal standards, such as the UN Basic Principles on the Independence of the Judiciary, which provide that all decisions related to judicial suspension and dismissal should be the result of a fair hearing and be subject to an independent review.

So with the Executive Government in Turkey having so much control over the Judiciary the separation of powers has been compromised. This takes us to the rule of law.

Rule of Law

World leaders have urged Turkey to respect the rule of law since the coup attempt. US Secretary of State John Kerry has urged Turkey to maintain democratic governance.

There is no one definition of the rule of law. It’s more of an idea that all of us are governed by law, as opposed to being governed by arbitrary decisions of individual government officials and that no one is above the law. The notion of innocent until proven guilty is also imperative. The Rule of Law Institute has a set of guiding principles to describe the concept, click here to read them.

The 2016 International Commission of Jurists report Turkey: the Judicial System in Peril writes about the rule of law:

An effective justice system, with an independent and impartial judiciary, an indepen­dent legal profession and a functionally independent prosecution service is an essential foundation for the rule of law and for the protection of human rights.

US State Department Spokesman John Kirby stated that they expect the Turkish Government to live up to the democratic principles enshrined in their Constitution.

Just yesterday 21 July, the President, Recep Tayyip Erdoğan declared a three month state of emergency. This is also a constitutional provision and gives him extraordinary powers.

Declaration of state of emergency because of widespread acts of violence and serious deterioration of public order

In the event of serious indications of widespread acts of violence aimed at the destruction of the free democratic order established by the Constitution or of fundamental rights and freedoms, or serious deterioration of public order because of acts of violence, the Council of Ministers, meeting under the chairpersonship of the President of the Republic, after consultation with the National Security Council, may declare a state of emergency in one or more regions or throughout the country for a period not exceeding six months.

The first order of business under the state of emergency was to suspend the European convention on human rights.

We should all be confident that our Australian Constitution would not allow the widespread sacking of judges here. Do you think the Turkish Constitution has been breached by the removal of so many within the judiciary?


Subscribe and stay up to date with CEFA's Constitutional Forum